49 Mass. App. Ct. 827 | Mass. App. Ct. | 2000
The issue before us is whether the judge erred in refusing to give a missing witness instruction after permitting defense counsel to argue that an adverse inference should be drawn against the Commonwealth for its failure to call certain persons to testify. In the circumstances of this case, we conclude that the refusal constituted error and vacate the defendant’s convictions of armed robbery and threatening to commit a crime.
Five days later, Evans spied a person he thought to be the robber. Accompanied by six of his friends, he confronted the robber who stated that he had been joking and that he would retrieve the chains from his home and return them. At that point, Evans drove away with his friends and called the police who broadcast a description of the robber. Shortly thereafter, police officers picked up the defendant two or three blocks from the place of Evans’s recent confrontation with the robber. The police then brought the defendant to Evans who identified him as the robber. The only other prosecution evidence came from three police officers who testified to picking up the defendant and to Evans identifying the defendant as the robber and giving a statement.
At trial, the defendant testified he was elsewhere at the time of the robbery. That alibi was corroborated by the testimony of two friends.
After the close of evidence, the judge rejected the defendant’s request for a missing witness instruction.
Discussion. The rationale and rule for comment or instruction with respect to the failure to call a witness is that, “[wjhere a party has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case, the party would naturally offer that person as a witness. If, then, without explanation, he does not do so, the jury may, if they think reasonable in the circumstances, infer that that person, had he been called, would
Here, counsel for the defendant followed the proper practice of obtaining the permission of the judge to argue to the jury that an inference might be drawn against the Commonwealth for failure to call certain witnesses. See Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 658 (1989).
The defendant suggests that where the evidence “uniformly supports a missing witness instruction ... a criminal defendant is entitled to such an instruction as a matter of right,” correctly pointing out that the cases supporting the need for judicial caution in permitting an adverse inference are inapposite when the inference is to run against the Commonwealth. The absence of constitutional concerns underlying the call for caution,
We need not, however, go so far as to proclaim a per se rule. In the circumstances of this case, defense counsel’s closing argument not only was undercut by the absence of a confirming judicial instruction permitting the adverse inference, but actually was negated by the instructions limiting the jurors to the admitted evidence and cautioning them against deciding the case on the basis of unanswered questions. Such normatively appropriate instructions reasonably may have been construed by the jury as requiring them to reject the adverse inference suggested by defense counsel, especially when considered with the absence of a missing witness instruction and the judge’s bland response to the jury’s pointed questions. Compare Commonwealth v. Pratt, 407 Mass. 647, 654-658 (1990) (in a case where there is no indication a missing witness instruction was requested, the court held that the judge’s narrow admonition to the jury not to “imagine,” “guess,” and “speculate” did not improperly frustrate the defendant’s missing witness argument).
Given the elemental victim versus defendant credibility issue with which the jury was presented, the judge’s statements, coupled with his refusal to give a missing witness instruction, erroneously “removed from the jury’s consideration the precise issue sought to be raised by the defendant!].” Commonwealth v.
In light of our decision, we do not address the defendant’s claim that the prosecutor’s unobjected to closing argument contained improper statements that cumulatively require reversal. We trust that, upon any retrial, the prosecutor will avoid misstating the evidence, vouching for testimony, and pointing out that the defendant failed to present documentary evidence to corroborate the alibi testimony.
The judgments are reversed, and the convictions are vacated; the case is to stand for a new trial.
So ordered.
The defendant was sentenced to State prison for five to seven years for armed robbery and a concurrent house of correction term of six months for threatening to commit a crime.
That requested instruction essentially was in the form of instruction 4.04 of the Model Jury Instructions for Use in the District Court (rev. 1995), the first portion of which is as follows:
“If the Commonwealth in this case did not call a potential witness to testify, you are free to infer that the witness’s testimony would not be favorable to- the Commonwealth, but only if three conditions are satisfied:
“First, the absent witness must be expected to offer testimony which is important to the Commonwealth’s case against the defendant;
“Second: the absent witness must be available to testify for the*829 Commonwealth; and
“Third: the witness’s absence must not be explained by any of the other circumstances in the case.”
Following a practice we endorse, the judge submitted a draft of his proposed charge to counsel before arguments and, with their approval, provided the jury with a written copy of his final instructions after they were spoken by him. See Commonwealth v. Dilone, 385 Mass. 281, 287 n.2 (1982); Commonwealth v. DiBenedetto, 427 Mass. 414, 422 (1998).
While such a request is not a prerequisite to the argument, as a matter of law, counsel who fails to seek permission runs the risk that a judge will interrupt his argument and inform the jury of its impropriety. The judge, as a matter of discretion, may wait until the conclusion of the argument to give such correction. See Commonwealth v. Vasquez, supra at 658 n.4. See also Commonwealth v. Fredette, 396 Mass. 455, 466 (1985); Commonwealth v. Rodriguez, ante 370, 375 (2000).
On cross-examination, defense counsel elicited from Evans that he knew where, in Springfield, several of the witnesses currently resided. Absent a showing by the Commonwealth of unfairness or impediments to obtaining the testimony of these witnesses, this evidence was enough to demonstrate availability.
The concept of availability has been the subject of different interpretations. One formulation focuses on the knowledge of the identity and whereabouts of the witness and the ability to require his testimony. Applying those criteria, this approach holds that, “Where a witness is equally available to both sides, no inference should be drawn against either side for failing to call the witness.” Liacos, Massachusetts Evidence § 5.6.2, at 250 (7th ed. 1999). See Commonwealth v. Happnie, 3 Mass. App. Ct. 193, 195-198 (1975). The better view is that, “It is not accurate to say that where the person is ‘equally avail
The cases urging caution in permitting an adverse inference often cite to Commonwealth v. Schatvet, 23 Mass. App. Ct. at 134-135, in which Justice Kaplan wrote that the matter should be approached with caution not only because of the potential serious adverse effect on the party who failed to call the witness but also because “ [circumspection in this matter is especially called for where the inference would run against a defendant in a criminal prosecution, for the inference may come uncomfortably close to invading constitutional rights.” Id. at 135. Justice Kaplan noted that among the rights “[m]entioned in this connection” is “the Commonwealth’s fixed burden to prove guilt beyond a reasonable doubt.” Id. at 135 n.10. In contrast to the intimation that the adverse inference, when drawn against a criminal defendant, might erode the presumption of innocence and effect a shift in the burden of proof, the Supreme Judicial Court in Commonwealth v. Thomas, 429 Mass. 146, 153-154 (1999), indicated that an argument along these lines is without
The defendant registered appropriate objection throughout, implicating the “harmless error” standard. Commonwealth v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J. concurring).